No Room for Cabinet System, Even Less Room for Pseudo-Dual Leadership System

No Room for Cabinet System, Even Less Room for Pseudo-Dual Leadership System
United Daily News Editorial (Taipei, Taiwan, ROC)
A Translation
April 1, 2015

Executive Summary: The KMT and DPP have announced their constitutional amendment proposals. The KMT advocates "a cabinet system in which responsibilities are commensurate with powers". Tsai Ing-wen, on the other hand, says that "Current mainstream public opinion demands the presidential election. Therefore there is no room for a cabinet system." But if there is no room for the cabinet system, there is even less room for a pseudo-dual-leadership system.

Full Text Below:

The KMT and DPP have announced their constitutional amendment proposals. The KMT advocates "a cabinet system in which responsibilities are commensurate with powers". Tsai Ing-wen, on the other hand, says that "Current mainstream public opinion demands the presidential election. Therefore there is no room for a cabinet system."

If the president continues to be directly elected, and a cabinet system is adopted, the two will definitely clash. But direct presidential elections in conjuctions with a dual leadership system has a precedent in France. A constitutional crisis has arisen because our current system is a dual-leadership system in name, but a super-presidential system in practice.

Tsai Ing-wen must acknowledge that although the current constitution may calls for direct presidential elections, but it is not a presidential system in fact. It merely became a presidential system by default. This is the cause of the current constitutional crisis, and this is the matter that must be addressed.

The constitution has been severely undermined by seven previous amendments. The current constitution fails to clearly outline the president's authority and responsibility. Current constitutional powers include national defense, foreign diplomacy, and cross-Strait policy. But these so-called presidential powers come from the "Organic Law of the National Security Council", and not from the Constitution. This is the source of the controversy over "legislation trumping the constitution". 

Assume for the moment that these so-called "three presidential powers" are derived from the current constitution and legislation. President Ma Ying-jeou's record in defense, diplomacy, and cross-Strait relations has been outstanding. So why has he been blasted for the 8/8 Typhoon, hikes in gasoline prices and electricity rates, the capital gains tax, and other social welfare issues? Why does even he believe he must bear total responsibility for the success or failure of these matters? As we can see, the dual leadership system has degenerated into a presidential system. In practice, Lee Teng-hui, Chen Shui-bian, and Ma Ying-jeou have departed from the constitution. Put simply, constitution qua constitution, this is unconstitutional.

Therefore we must amend Tsai Ing-wen's observation: "According to the current constitution, there is no room for a presidential system." Constitutional amendments have been proposed under the current dual leadership structure. Some say we must not adopt a cabinet system in which responsibilities are commensurate with powers. Actually, we could say that we must not adopt a presidential system in which responsibilities are commensurate with powers. The key is "responsibilities commensurate with powers". Direct presidential elections pose an obstacle to the adoption of a cabinet system. Adopting a presidential system in toto could lead to an even greater constitutional crisis. That is not something the public can tolerate.

We are recutting our garments while wearing them. We are attempting to change the pseudo-dual-leadership system back to a true dual leadership system. In doing so, we must consider constitutional principles, of which there are three. One. Presidential elections should require an absolute majority. Two. The Legislative Yuan's powers of consent in premiership appointments must be restored. |Three. We must adopt an "chief executive rechanneling system". When the president enjoys a majority in the Legislative Yuan, a "Presidential cabinet system" is in force. When the president lacks a majority in the Legislative Yuan, a "Prime Ministerial cabinet system" is in force. This is the key to the French dual leadership system, in which "'responsibilities are commensurate with powers". Alas, this system has been butchered, and turned into our "pseudo-dual-leadership system". Tsai Ing-wen says that "Under direct presidential elections, there is no room for a cabinet system". But "Under direct presidential elections, there is room for a dual leadership system" either. 

Therefore future constitutional amendments should move toward a "dynamic cabinet dual leadership system". In other words, the KMT should discard the cabinet system. The DPP should cease attempting to turn a dual leadership system into a presidential system.

The dual leadership system carries a hidden risk. Serious disagreements about national identity and cross-Strait policy may arise. Suppose a pro-Taiwan independence president clashes with an anti-Taiwan independence cabinet? How can they "govern jointly"? This is a problem not easily overcome within the institutional framework. A solution can be found only through practical politics.

Tsai Ing-wen said she originally supported the cabinet system. The DPP has repeatedly trumpted constitutional amendments in which "responsibilities are commensurate with powers". Yet Tsai Ing-wen now argues that "There is no room for a cabinet system". She has made a complete about face. She said that if she returned to power, she would continue to change the dual leadership system into a presidential system. Her motives for this are now clear. Constitutional amendments have been proposed, primarily by the DPP and civic groups. The public has begun to re-examine the defects in the constitutional structure. Tsai Ing-wen may return to power. But will she still be able to exploit this pseudo-dual executive system, in which responsibilities are not commensurate with powers? Will she still be able to transform it into a presidential system?

Tsai Ing-wen has ringingly proclaimed that "There is no room for a cabinet system". She has prevented a pseudo-dual leadership system from becoming a genuine dual-leadership system. The current constitutional amendment process has been stopped dead in its tracks. But a "second stage constitutional amendment" remains. We expect the debate on constitutional reform to continue. Otherwise, the pseudo-dual-leadership system will remain a presidential system in practice, thereby undermining the constitution. The people will end up as accomplices in the destruction of the constitution.

If there is no room for the cabinet system, there is even less room for a pseudo-dual-leadership system.

聯合／內閣制無空間 但更不容偽雙首長制有空間
2015-04-01 03:00:30 聯合報 聯合報社論

國民黨及民進黨的修憲版本皆已攤牌。國民黨主張「推動權責相符的內閣制」，蔡英文則說：「目前主流民意堅持總統直選，因此內閣制沒有存在空間。」

若維持總統直選，而欲改行內閣制，確實有其鑿枘扞格之處。但是，在維持總統直選下，行「雙首長制」卻已有成例，如法國。當前我國憲政的癥結，正是將一部宣稱以雙首長制為架構的憲法，運作成了超級總統制。

蔡英文必須認知：依據現行憲法，雖然實行總統直選，但絕不是總統制，卻又被操作成了總統制，這始是當前修憲必須處理的核心問題。

這部憲法經七次修憲，已遭嚴重毀傷。現行憲法對於總統權責的規範，非但未課以明確的憲政責任，甚至亦未授以明確的憲政權力。如今列舉總統之憲政權力，常謂總統具有「國防／外交／兩岸」的大政方針之權，但這所謂的「總統三權」，全係出自《國安會組織法》，而非源自憲法明文之頒授，因而仍有「以法代憲」之爭議。

然而，若謂此「總統三權」是在「憲」及「法」的現制中找得到法源的總統權力，則馬英九總統在「國防／外交／兩岸」上的治理均有優異表現；卻為何在實際憲政運作中，他竟因八八風災、油電雙漲、證所稅及其他經濟民生之治理爭議而遭強烈非難，而他自己亦認為應當負起國家全盤治理成敗之責任？由此可知，雙首長制已經「變質」為總統制；李扁馬三位總統以來的此種實際憲政運作，其實已自憲法的軌道上脫軌。直白而言，就憲法論憲法，這根本是違憲的。

因此，必須把蔡英文的那一句話補充說完：「依現行憲法，若要將其操作成總統制，也是沒有存在空間的。」所以，在當前雙首長制架構下談修憲議題，有人說要不要改行「權責相符」的內閣制，其實也可以說要不要改行「權責相符」的總統制。其中，「權責相符」四字始是關鍵。然而，若欲改行內閣制，固然卡在總統直選上，但若真要改行全碗捧去的總統制，亦恐將釀成更大的憲政難題甚至災難，非民意所容。

於是：既然是穿著衣服改衣服，將現行憲法的「偽雙首長制」改回「真雙首長制」，應是可以思考的修憲方針。主要架構有三：一、總統選舉採「絕對多數制」。二、恢復立法院的「閣揆任命同意權」。三、採「行政權換軌制」：當總統與立法院之多數為同黨，行「總統內閣制」；總統與立院之多數為異黨，則採「總理內閣制」。此一「權責相符」的架構係法國雙首長制的關鍵，而竟遭我國梟首肢解成「偽雙首長制」。準此，蔡英文謂「在總統直選下，內閣制沒有存在空間」；但是，「在總統直選下，雙首長制有存在空間」。

因而，未來修憲，可朝「在雙首長制下的動態內閣制」之方向來發想。也就是說，國民黨應擺脫「內閣制」的框架，民進黨則不能再有「將雙首長制操作成總統制」的非非之想。

不過，雙首長制有一隱憂。在國家認同與兩岸政策有嚴重分歧下，若出現一位「獨」的總統與「非獨」的內閣，如何「共治」？這是體制架構不易克服的問題，唯賴在現實政治的推移中尋求解方。

蔡英文原本說過「支持內閣制」，民進黨亦屢次宣示「權責相符」是修憲綱領。但蔡英文如今卻稱「內閣制沒有存在空間」，其出爾反爾猶在其次，實則已將她若重返執政後「繼續將雙首長制操作成總統制」的居心暴露無遺。但是，修憲之議既起，且主要是由民進黨及公民團體發動，全民既又開始重新檢視憲政架構之缺陷，則蔡英文即使重返執政，還能繼續將這種「權責不相符」的「偽雙首長制」操作成她的總統制嗎？

蔡英文既喊出「內閣制無空間」，不啻亦是堵死了「化偽雙首長制為真雙首長制」的空間，此次修憲其實可謂已告破局。但即使破局，卻又稱將有「二階段修憲」，我們仍期望關於憲政改革的辯論必須繼續進行；否則，如果坐視現今這種「偽雙首長制」操作成「總統制」的憲政脫軌惡象繼續存在，全民不啻皆是毀憲亂憲的共犯結構。

內閣制若無空間，但更不容「偽雙首長制」有空間。